LARAMIE – The University of Wyoming’s suspension of tabling privileges for a Laramie church elder could run afoul of the First Amendment if challenged in court, but the university has a case that it was within its rights, freedom of speech and legal experts say.
The outcome of any legal recourse for the church leader, who was enveloped in controversy after he posted a sign directed at a transgender student, remains unclear and would depend on how the courts view the school’s authority to regulate tabling and the interpretation of harassment, which the university cited in making its decision.
“This particular [case] is kind of simple,” said Ken Paulson, the director of the Free Speech Center at Middle Tennessee State University. “It’s a university first and foremost that is there to teach people in pursuit of careers and lifetime opportunities. That’s paramount, and it can set limits, as long as they’re not unreasonable or discriminate against a particular point of view.
“If someone wants to argue they have freedom of faith on a college campus, they do. They can say a prayer silently or otherwise on their own time and their own space. That doesn’t mean the university has an obligation to give them a pulpit,” he said.
Freedom of speech
UW suspended Laramie Faith Community Church elder Todd Schmidt from tabling in the Wyoming Union for a year after a Dec. 2 incident in which he hung a sign directed at a student that read: “God created male and female and [the student’s name] is a male.”
In a letter to Schmidt notifying him of UW’s decision, Dean of Students Ryan O’Neil justified the decision by citing the Wyoming Union’s reservation policies and the conclusion by the university’s Equal Opportunity Report and Response Unit, which reviews and investigates allegations of discrimination, harassment, sexual misconduct and workplace violence, that Schmidt violated UW’s policies “for discriminatory harassment of a current student.”
“The [Equal Opportunity Report and Response Unit’s] report also notes that your pattern of behavior is on a trajectory which, if continued, is likely to also create a hostile environment,” O’Neil wrote.
Since the beginning, Schmidt has maintained that the university’s decision violated his First Amendment rights.
Unlike private universities, which are not obligated to allow freedom of speech, public universities are considered governmental entities, and their policies and actions are subject to the First Amendment, said Zach Greenberg, the senior program officer for campus rights advocacy at the Foundation for Individual Rights and Expression (FIRE), a nonpartisan advocacy group that focuses on freedom of speech in higher education.
In two letters sent to UW Board of Trustees Chairman John McKinley earlier this month, a group of 25 Wyoming lawmakers and Majority Floor Leader-elect Rep. Chip Neiman, R-Hulett, accused the university of violating Schmidt’s freedom of speech rights on the basis of his “religious and political beliefs.”
The First Amendment protects from viewpoint discrimination, or the limiting of speech based on someone’s opinions and beliefs, which UW’s decision likely constitutes, Greenberg said.
“The university is singling out and targeting an individual based on the viewpoints they hold, in this case the anti-trans stance of this preacher,” Greenberg said. “Viewpoint discrimination is an egregious violation of the First Amendment, and it’s not allowed at a public university.”
The fact that Schmidt was suspended while LGBTQ groups can continue to table in the Wyoming Union lends weight to lawmakers’ and Schmidt’s claims that his freedom of speech rights have been violated based on his views, said Bruce Moats, a Cheyenne attorney who specializes in the First Amendment and media law.
“The argument’s going to be you’re allowing the side that supports transgender [rights], but you don’t allow the side that doesn’t support it,” Moats said.
Ultimately, it is his religious views that Schmidt believes led the university to suspend his tabling.
“I just think it was a simple statement of the biological biblical fact, and they didn’t like it,” he said. “… It’s obviously one sided. They like one side of free speech, and they don’t like the other.”
Review finds harassment
In a Dec. 5 news release, UW President Ed Seidel told the university community that Schmidt was asked to remove the sign directed at the student, but that his interactions with students “were not in obvious violation of UW policies.”
Two days later, Seidel announced the suspension of Schmidt, telling students, faculty and staff that a review had found that Schmidt had violated the university’s harassment and discrimination policies
“While freedom of expression is cherished on this campus and across this nation, a line was crossed when a student was harassed by name. This is something we will not tolerate on this campus, and this action speaks to that key principle to which we adhere at UW,” he wrote.
Though the First Amendment broadly protects freedom of speech, it has limits. Harassment, defamation, threats, incitement and obscenity are all considered unprotected speech, said Emerson Sykes, a senior staff attorney with the ACLU Speech, Privacy and Technology Project.
In its 1999 Davis v. Monroe County Board of Education decision, the U.S. Supreme Court laid out the standard for harassment under Title IX when it ruled that schools could be held responsible for harassment that impacts a student’s education.
According to the court’s ruling, the conduct must be “severe, pervasive, and objectively offensive” to qualify as harassment. It also must be targeted.
Under the standard outlined by the Supreme Court, Greenberg argued that Schmidt’s sign and actions in the Wyoming Union likely did not rise to the level of harassment.
“The targeting of the individual’s name is definitely closer to harassment, but I think the fact that it was just a sign in a public area of campus is not severe enough to really cross over that line,” he said.
But Sykes disagreed. Naming the student likely pushed Schmidt’s sign and actions into harassment, he said.
Schmidt told the Star-Tribune that he did not slander, harass, bully or threaten the student, and that he was simply expressing his religious beliefs. But religious conviction does not shield all speech, Sykes said.
“There’s a difference between saying, ‘God says there are men and women’ and saying ‘this person in this community is lying about their own identity,’” he said.
Schmidt’s sign could also rise to harassment in the eyes of the court if it were to consider current events, Moats said.
Just two weeks before Schmidt hung his sign at UW, a 22-year-old suspect allegedly entered an LGBTQ nightclub in Colorado Springs, shooting and killing five people and injuring at least 19 others. On Nov. 30, the Department of Homeland Security also issued a terrorism bulletin warning of the heightened risk of domestic attacks against the LGBTQ community and schools.
Seidel referenced concerns about student safety when announcing Schmidt’s suspension.
“The recent events on campus should cause us all trepidation for the well-being and safety of our students and employees,” Seidel wrote.
Any decision by the courts affirming or striking down UW’s suspension of Schmidt could ultimately rest on the issue of campus safety, Moats said.
“It may come down to were they motivated by his viewpoint, or were they motivated by legitimate safety concerns?” he said.
The decision by UW’s administration to suspend Schmidt from tabling for a year, but not take further action could also bolster the school’s case in a court of law.
Under the First Amendment, governmental entities like UW can regulate speech under “time, place and manner restrictions,” Paulson said.
The university could prevent someone from disrupting a class to share their political views, for example.
“Basically, it says government cannot deprive you of speech, but under reasonable circumstances, it can establish the time you speak, the place you speak and the manner in which you do it. And that’s exactly what’s happening here at the university,” Paulson said.
UW’s policies outline a number of regulations that apply to those who table in the Wyoming Union, including that signs and posters must be approved by the director of the Center for Student Involvement and Leadership, and that “all individuals tabling, whether UW affiliated or not, are expected to bring their views in a respectful and civil manner.”
They also lay out that tabling requests “may be denied for reasons which include, but may not be limited to, conflict with the mission of the University, conflict with the mission of the Wyoming Union, unfeasible setup/turnaround time, and historic negligence or abuse.”
The university’s ability to control where, when and how speech occurs, as well as its harassment and discrimination policies, which state that the university will not accept the targeting of students based on, among other things, gender identity, give UW some leeway in choosing who can table, Paulson said.
“I thought their harassment policy was careful and balanced,” Paulson said. “It specifically says that students may not be subjected to speech or conduct that makes them uncomfortable in their educational environment, and that includes people being called out for their gender [identity]. Their policy is actually spot on. It’s well directed and defensible.”
“I don’t see a First Amendment violation here at all,” he said.
UW spokesperson Chad Baldwin confirmed that Schmidt is free to visit UW and the Wyoming Union. He has since returned to campus to preach on Simpson Plaza, which is just a few hundred feet outside of the Wyoming Union.
The lack of a campus-wide ban or any other restrictions also limits any claims that the university is denying Schmidt his First Amendment rights, Sykes said.
“The worry about censorship is that you prevent people from reaching their audience,” Sykes said. “If he can still reach his audience in some way, then that certainly lessens the harm to his First Amendment rights.”
Schmidt said he is still considering his options for recourse against the university. In part, his frustration stems from the lack of communication and transparency with the UW administration.
The school’s Wyoming Union policies state that those who participate in tabling will be warned once about complaints before they lose their tabling privileges. O’Neil’s letter references “multiple verbal warnings” given to Schmidt by “the Center for Student Involvement and Leadership Director, the Associate Director of Operations, and various student staff who work at the Wyoming Union Information Desk.”
But Schmidt said he has never received any warnings from the university about his conduct.
“According to Dean O’Neil, there’s been multiple warnings. Then why didn’t they kick me out before?” Schmidt said. “If it’s this serious – and they’re making it sound this serious – then they should have suspended me years ago.”
After the Dec. 2 incident, the university never contacted him or included him in any investigation, Schmidt said. He was surprised to see O’Neil’s letter days later.
“I thought the end of it was when I took the name off my sign,” he said.
Though the success of a legal challenge by Schmidt remains unclear, Moats argued in favor of an expansive interpretation of the First Amendment.
“Unpopular opinions and speech are what need protection under the First Amendment,” Moats said. “You can always find yourself on either side of the coin.”